Executory Devise - Definition - Law Dictionary Home Dictionary Definition executory-devise

Definition :

Executory devise. Mr. Fearne (Cont. Rem. 386) defines an executory devise to be, strictly, such a limitation of a future estate or interest in lands or chattels (though, in the case of chattels personal, it is more properly an executory bequest) as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at Common Law. It is only an indulgence allowed to a man's last will and testament, where otherwise the words of the will would be void; for wherever a future interest is so limited by devise as to operate as a contingent remainder, such an interest is not an executory devise, but a contingent remainder.

Executory Devises have been divided into three kinds, two relative to real, and the third to personal estate only, viz.:-

(1) Where a testator devises his whole fee-simple, but upon some contingency qualifies such devise, and limits an estate on the contingency; e.g., a devise of land to the testator's wife for life, remainder to C., his second son in fee, provided if D. his third son should within three months after the wife's death pay 500l. to C. or his executors, then to D. and his heirs: this is an executory devise to D.

(2) Where a testator, without disposing of the immediate fee, gives a future estate to arise, either upon a contingency, or at a period certain, unpreceded by, or not having the requisite connection with, any immediate freehold, to give it effect as a remainder.

The case of a devise to one, to take effect six months after the testator decease, is an instance of the first class in this description.

And the case of a limitation to one for life, and from and after the expiration of one day (or any other period, not exceeding twenty-one years, we may suppose) next ensuing his decease, then over to another, may be adduced as an instance of the latter part o this description.

(3) The third sort of executory devises, comprising all that relates to chattels, is where a term or any personal estate is bequeathed to one for life, or otherwise, and after the deceased of the devisee or legatee for life, or some other contingency or period, is given over to another person.

It is to be remarked that a remainder could only be limited in freehold estates. In personal property, under which both chattels real and chattels personal are included, there could not be a remainder in the strict sense of that word, and therefor every future bequest of personal property, whether it be preceded or not preceded by a prior bequest, or limited on a certain or an uncertain event, is an executory bequest, and falls under the rules by which that mode of limitation is regulated.

The great and essential difference between the nature of a contingent remainder and that of an executory devise consists in this, that the first could be barred and destroyed or prevented from taking effect by several different means, although the stringency of this rule was mitigated by the (English) R.P. Act, 1845 (8 & 9 Vict. c. 106), s. 8, which provided against failure upon premature determination of any preceding estate of freehold by forfeiture, surrender or merger, and the (English) Contingent Remainders Act, 1877 (40 & 41 Vict. c. 33), which provided that every contin-gent remainder created after 2nd August, 1877, which would have been valid as an executory limitation including an executory devise should be capable of taking effect as an executory limitation. These statutory provisions have been repealed by the (English) Law of Property Act, 1924, Sched. 10, and future legal estates in land under executory devises have been changed to equitable interests by the (English) L.P. Act, 1925, s. 1, and by s. 4(2) of that Act, after 1925 equitable interests in land shall only be capable of being validly created in any case in which an equivalent interest in property real or personal could have been validly created before 1926. And it is a rule that an executory devise cannot be prevented or destroyed by any alteration whatsoever, in the estate out of which or after which it is limited.

If the executory devise be limited to take effect on an estate-tail, then the tenant-in-tail may, by a deed of disposition in conformity with the Fines and Recoveries Act, 1833 (3 & 4 Wm. 4, c. 74), and s. 130, (English) Law of Properties Act, 1925 (see TAIL), bar the entail, and all remainders, executory devises, and conditional limitations dependent thereupon. See EXECUTORY LIMITATION and CONTINGENT REMAINDER.